Simpson et al v. Cook County Sheriff's Office et al

Filing 126

MEMORANDUM Opinion and Order: The Merit Board's motion to dismiss 104 is granted in part and denied in part. The plaintiffs' section 1983 and Illinois Civil Rights Act claims against the Merit Board are dismissed without prejudice. Signed by the Honorable Sharon Johnson Coleman on 7/24/2019. Mailed notice. (ym, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSEPH D.G. SIMPSON, FREDERICK
MERKERSON, MAURICE RICHARDSON,
and JONATHAN HARRIS, on behalf of
themselves and all others similarly situated,
Plaintiffs,
v.
COOK COUNTY SHERIFF’S OFFICE,
COOK COUNTY SHERIFF’S MERIT
BOARD, and COUNTY OF COOK
Defendants.

)
)
) Case No. 18-cv-553
)
) Judge Sharon Johnson Coleman
)
)
)
)
)
)
)
)
)

MEMORANDUM OPINION AND ORDER
The plaintiffs, Joseph D.G. Simpson, Frederick Merkerson, Maurice Richardson, and
Jonathan Harris, allege that the Cook County Sheriff’s Office and Cook County Sheriff’s Merit
Board (“The Merit Board”) have discriminated against them based on their race by rejecting their
applications to be correctional officers, in violation of Title VII of the Civil Rights Act of 1964,
Section 1981 of the Civil Rights Act of 1866, the Illinois Civil Rights Act, and the Equal Protection
Clause of the United States Constitution. The Merit Board now moves to dismiss the plaintiffs’
claims against it. For the reasons set forth herein, that motion is granted in part and denied in part.
Background
The plaintiffs allege that the Cook County Sheriff’s Office and the Merit Board have
engaged in a pattern of intentional discrimination and disparate treatment against African American
applicants to be correctional officers.
The Cook County Sheriff’s Merit Board is an administrative body authorized by statute. The
Board’s purpose is to create employment policies and make employment decisions for the Cook
1

County Sheriff’s Office. The Merit Board is the final decisionmaker as to whether applicants are
certified as “eligible for hire,” a designation which is a prerequisite to the Sheriff’s Office’s final
hiring decision. In order to be certified as eligible to hire, an applicant must pass a written
examination, a situational examination, a physical fitness test, fingerprinting, drug testing, a
background investigation, and an interview by a Merit Board investigator. The Merit Board is
almost entirely white, and applicants’ race is indicated throughout the information collected and
considered by the Merit Board. Between 2013 and 2017, black applications were disproportionately
likely to be denied certification by the Merit Board.
Simpson applied to be a correctional officer four times between 2014 and 2018. His 2015
application was certified by the Merit Board, but the Sheriff’s Office rejected him for employment.
His most recent application was rejected in 2018 based on his score on the Merit Board’s written
examination. Merkerson applied to be a corrections officer in 2015. The Merit Board refused to
certify Merkerson as eligible to hire, despite the fact that Merit Board employees had remarked
favorably on his qualifications. Merkerson’s interviewer, however, had warned him that the Merit
Board would try to “fuck [him] over, because they’re not hiring black folks.” Merkerson
subsequently filed a charge of discrimination with the EEOC. Although that charge of
discrimination did not name the Merit Board as a defendant, it contained allegations involving the
Merit Board, the Merit Board was represented in the proceedings, and the Merit Board’s Executive
Director was interviewed. The remaining named plaintiffs, Richardson and Harris, were both
certified for employment but were ultimately not hired by the Sheriff’s Office, seemingly following
the results of their post-certification polygraph examinations.
Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint, not the merits of the allegations. The allegations must contain
2

sufficient factual material to raise a plausible right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 569 n.14, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although Rule 8 does not require a plaintiff
to plead particularized facts, the complaint must assert factual “allegations that raise a right to relief
above the speculative level.” Arnett v. Webster, 658 F.3d 742, 751–52 (7th Cir. 2011). When ruling
on a motion to dismiss, the Court must accept all well-pleaded factual allegations in the complaint as
true and draw all reasonable inferences in the plaintiff’s favor. Boucher v. Fin. Sys. of Green Bay, Inc.,
880 F.3d 362, 365 (7th Cir. 2018).
Discussion
As an initial matter, the Merit Board contends that it is not properly named as a defendant in
this action. In order for the plaintiffs to bring a Title VII claim against the Merit Board, the
plaintiffs must establish that the Merit Board was their employer. As the Seventh Circuit and other
courts in this district have recognized, however, the Merit Board does not act as an employer, but
instead acts as an agent of the Cook County Sheriff’s Department, which delegates certain
employment functions to it. See Averhart v. Cook County Sheriff, 752 F.3d 1104, 1106 (7th Cir. 2014)
(concluding that the Merit Board was not an employer when acting in its capacity adjudicating
proposed terminations); Coleman v. Sheriff of Cook County, No. 16 C 2682, 2018 WL 3740558, at *5
(N.D. Ill. Aug. 7, 2018) (Durkin, J.) (recognizing that the Merit Board acts as the Sheriff’s agent for
purposes of Title VII liability). Accordingly, the Merit Board cannot be properly sued directly as an
employer under Title VII.
The plaintiffs alternatively argue that the Merit Board is an “employment agency” for
purposes of Title VII. Although Title VII makes it illegal for an employment agency to engage in
racial discrimination, the term “employment agency” is defined as only encompassing those who
regularly undertake to “procure employees for an employer or to procure for employees
opportunities to work for an employer.” 42 U.S.C. § 2000e(c). Here, there is no allegation that the
3

Merit Board is procuring employees or employment. Instead, the plaintiffs allege that the Merit
Board screens potential applicants on behalf of the Sheriff. The Court does not interpret this
activity as falling within the scope of “procuring” those applicants or their employment, and thereby
disagrees with the limited authorities from other jurisdictions holding to the contrary. See generally
Dumas v. Town of Mount Vernon, Ala., 612 F.2d 974, 980 (5th Cir. 1980) (stating without explanation
that a county personnel board is an employment agency), overruled on other grounds by Larkin v.
Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549, 1569 (11th Cir. 1988); Scaglione v. Chappaqua Central
Sch. Dist., 209 F. Supp. 2d 311, 318 (S.D.N.Y. 2002) (holding that a municipal service administrator
responsible for administering all hiring procedures for municipalities within the county was an
employment agency for purposes of Title VII). The Court also does not find the role of the Merit
Board to be comparable to other private and public entities that affirmatively seek to procure job
placements for others, such as the law school defendant in Kaplowitz v. Univ. of Chi., 387 F. Supp. 42,
46 (N.D. Ill. 1974) (Marovitz, J.). The Court therefore rejects this argument.
The plaintiffs, in an alternative argument, attempt to assert that the Merit Board was their de
facto or indirect employer because it asserted control over their employment. See generally Harris v.
Allen County Board of Commissioners, 890 F.3d 680, 683 (7th Cir. 2018). The Merit Board, in a
conclusory footnote, asserts that the allegations supporting this theory are insufficient and that this
theory is not legally sound. The allegations in the complaint, however, establish that the Merit
Board played a dispositive role in the hiring process at issue in this case. Accordingly, and in the
absence of any contrary authority, the Court does not foreclose the plaintiff’s indirect employment
argument at this time.
The Merit Board also contends that the plaintiffs’ Title VII claims must be dismissed
because they were not administratively exhausted before the EEOC. Generally, a party not named
in an EEOC charge may not be sued under Title VII. Schnelbaecher v. Baskin Clothing Co., 887 F.2d
4

124, 126 (7th Cir. 1989). An exception to this requirement exists, however, when the unnamed
party is given adequate notice of the charges and has the opportunity to participate in the EEOC
conciliation proceedings. Eggleston v. Chicago Journeyman Plumbers’ Local Union No. 130, U.A., 657 F.2d
890, 905 (7th Cir. 1981). Title VII does not require procedural exactness, and EEOC charges must
be construed with the “utmost liberality” to join parties sufficiently named or alluded to in the
factual statement. Id. at 906.
Here, Merkerson’s charge of discrimination alleged that he was disqualified by the Merit
Board, that the background questionnaire administered by the Merit Board included questions
adversely impacting minority applicants, and that he had been told that the Merit Board was “not
hiring black folks.” The complaint alleges that the Cook County Sheriff’s General Counsel’s Office,
which represented both the Sheriff and the Merit Board, actively participated in the investigation
and responded to information requests on behalf of the Merit Board. The complaint also alleges
that the Merit Board’s Executive Director was extensively interviewed regarding the Merit Board’s
screening process. On the limited record before the Court, these allegations suffice to establish that
the Merit Board had notice of the charges and had the opportunity to participate in the EEOC
proceedings. Accordingly, Merkerson adequately exhausted his administrative remedies with respect
to the Merit Board.1
The Merit Board next contends that the plaintiffs have failed to state a claim under 42
U.S.C. § 1983. In order to state a section 1983 claim under Monell, a plaintiff must allege that his
constitutional injury was caused by the enforcement of an express policy, a widespread practice so
permanent and settled as to constitute a custom or usage with the force of law, or a person with
final policymaking authority. Wragg v. Village of Thornton, 604 F.3d 464, 467–68 (7th Cir. 2010).
Here, the plaintiffs have clearly alleged that the Merit Board played a dispositive role in the Sheriff’s
It is undisputed that Simpson can piggyback on Merkerson’s exhausted claims. Anderson v. Montgomery Ward & Co., Inc.
852 F.2d 1008, 1017–1018 (7th Cir. 1988).
1

5

hiring process, and that the Merit Board had a practice of either asking questions adversely
impacting minority applicants and tracking applicants’ race or of intentionally dismissing otherwise
qualified black applicants. This allegation distinguishes this case from Bless v. County Sheriff’s Office,
No. 13-cv-4271, 2016 WL 958554 (N.D. Ill. March 8, 2016) (Lee, J.). In Bless, a Monell claim based
on an employee’s termination was rejected because the Merit Board merely served as the
adjudicative body applying the employment policies of the Sheriff’s office. Here, by contrast, it is
alleged that the Merit Board has much greater discretion in the hiring process.
Accordingly, the allegations in the complaint are sufficient to state a claim under section 1983.
The Merit Board further contends that Merkerson’s section 1983 and Illinois Civil Rights
Act claims are time barred. As this Court has previously held, the plaintiff’s section 1983 and Illinois
Civil Rights Act claims are subject to a two-year statute of limitations. The Merit Board denied
Merkerson’s certification for employment eligibility on October 27, 2015, and this case was not filed
until January 24, 2018. Although the plaintiffs argue that Merkerson’s claim did not accrue until the
earliest date on which Merkerson could have been hired if he had been certified, the Court finds the
plaintiffs’ arguments for that accrual date to be unconvincing. Unlike the Title VII cases that the
plaintiffs rely on, in this case Merkerson had explicit and certain knowledge that he would not be
hired as a result of the Merit Board’s determination that he was not eligible for hire. See Hileman v.
Maze, 367 F.3d 694, 696 (7th Cir. 2004) (recognizing that statutes of limitations begin to run when
the plaintiff knows or should know of their injury). Accordingly, the Court once again concludes
that Merkerson’s section 1983 and Illinois Civil Rights Act claims against the Merit Board are time
barred.
Conclusion

6

For the foregoing reasons, the Merit Board’s motion to dismiss [104] is granted in part and
denied in part. The plaintiffs’ section 1983 and Illinois Civil Rights Act claims against the Merit
Board are dismissed without prejudice.

IT IS SO ORDERED.
Date: 7/24/2019
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Court Judge

7